Mills against Auriol

JurisdictionEngland & Wales
Judgment Date15 June 1790
Date15 June 1790
CourtCourt of Common Pleas

English Reports Citation: 126 E.R. 251

IN THE COURTS OF COMMON PLEAS AND EXCHEQUER CHAMBER

Mills against Auriol

Referred to, Thomas v. Sylvester, 1873, L. R. 8 Q. B. 372.

[433] casks argued and determined in the court of common pleas in trinity term, in the thirtieth year of the reign of george III. mills against auriol. Tuesday, June 15th, 1790. [Referred to, Thomas v. Sylvester, 1873, L. R. 8 Q. B. 372.J The bankruptcy of the Defendant cannot be pleaded in bar of an action of covenant for rent (a). This was an action of covenant for non-payment of rent payable quarterly. The covenant on which the breach was assigned, after the usual words, "yielding and paying, &c." was as follows. " And the said Peter James (the Defendant) for himself, his heirs, executors, administrators, and assigns, did thereby covenant, promise, and agree, (amongst other things) to and with the said Benjamin, (the Plaintiff,) his heirs and assigns, that he the said Peter James, his heirs, executors, administrators, or assigns, should and would, during all the rest of the said term thereby demised, well and truly pay, or cause to be paid, unto the said Benjamin, his heirs and assigns, the said clear yearly rent of 1101. in manner and form aforesaid, according to the true intent and meaning of the said indenture." The breach was the non-payment of 271. 10s. for a quarter ending December 25, 1789. The Defendant pleaded 1st, Non est factum. 2d, Riens arrere. 3d, "That after the making of the said indenture in the said declaration mentioned, and before the suing out of the original writ of the said Benjamin against the said Peter James, to wit, on the firat day of January in the year of our [434] Lord 1789, and from thence until the day of suing out the commission of bankruptcy hereinafter mentioned against the said Peter James, he the said Peter James was a trader within the intent and meaning of the several statutes made and then in force against bankrupts ; that is to Bay, a merchant, dealer, and chapman, to wit, at London aforesaid, in the parish and ward aforesaid, and during all that time, used and exercised the trade and business of a merchant, in buying and selling divers silks and other goods, wares and merchandizes, and receiving consignments of silks and other goods, and selling the same on commission for his correspondents and customers, for profit and gain, and thereby sought and endeavoured to get his living as other persona of the same trade usually do; and:the said Peter James so being such trader as aforesaid, within the intent and meaning of the said several statutes made and then in force concerning bankrupts, and so seeking his living by way of buying and selling as aforesaid, he the said Peter James afterwards, and before any of the rent or money in the said declaration mentioned became due and payable, to wit, on the 8th day of June in the year aforesaid, at London aforesaid, in the parish and ward aforesaid, became and was indebted to one G-eorge Tickner Hardy, gentleman, then being a subject of this realm, in 1001. of lawful money of Great Britain, for so much money, before that time, paid, laid out and expended by the said George Tickner Hardy, to and for the use of the said Peter James, at his special instance and request; and the said (a) See stat. 6 Geo. 4, c. 16, s. 75. 252 MILLS V. ADRIOL 1 S. BL. 4S5. Peter James being so indebted cis aforesaid, and being a subject of this realm, and so seeking his living by way of buying and selling as aforesaid, he the said Peter James, afterwards, to wit, on the same day and year last aforesaid, at London aforesaid, in the parish and ward aforesaid, (he the said George Tickner Hardy so being a creditor of the said Peter James, and being then wholly unsatisfied hia debt) manifestly became a bankrupt within the intent and meaning of the several statutes made and them in force against bankrupts; and the said Peter James so being and remaining a bankrupt: as aforesaid, he the said George Tickner Hardy, as well for himself, as for all other creditors of the said Peter James afterwards, to wit, on the 9th day of June, in the year aforesaid, at Westminster, in the county of Middlesex, to wit, at London aforesaid, in the parish and ward aforesaid, exhibited his certain petition in writing, to the Eight Honourable Edward Lord Thurlow, then Lord High Chancellor of Great Britain, and thereby petitioned the said Lord Chancellor to grant to the said [435] George Tickner Hardy His Majesty's commission, to be directed to such and so many persons as he should think fit to be directed to such and so many persons as ha should think n't to give his authority of and concerning the said bankrupt, and to all other intents and purposes, according to the provisions of the statutes made and then in foree concerning bankrupts, as by the said petition remaining in the Court of Chancery of our lord the now King at Westminster aforesaid, more fully appears; and the said Peter James further saith, that upon the said petition of the said George Tickner Hardy so exhibited as aforesaid, on behalf of himself and all other the then creditors of the said Peter James, accurding to the form of the statutes in such case mad* and provided, for giving them relief on that behalf, afterwards and before the said sum of money in the said declaration mentioned, or any part thereof became due, and before the said supposed breach of covenant, to wit, on the ninth day of June in the year aforesaid, at Westminster aforesaid, to wit, at London aforesaid, in the parish and ward aforesaid, a certain commission of our lord the now King, founded upon the statutes made and then in force concerning bankrupts, in due form of law issued, under the Great Seal of Great Britain, bearing date the same day and year last aforesaid, directed to Michael Dodson, Thomas Plumer, Edward Pinch Hatton, Robert Comyn, and Charles Proby, Esquires, and was then and there to them directed, by which said commission our said lord the now King gave full power and authority to them the said Michael Dodson, Thomas Plumer, Edward Finch Hatton, Robert Comyn, and Charles Proby, four or three of them, to proceed, according to the said statutes, and all other statutes then in force concerning bankrupts, not only concerning the aforesaid bankrupt, his body, lands, tenements, both freehold and copyhold, goods, debta, and all other matters whatsoever, but also concerning all other persons, who by concealment, claim, or otherwise should offend touching or concerning the premises, or any part thereof, against the true intent and purport of the said statutes, and to do and execute all and everything and things whatsoever, as well for and towards satisfaction and payment of the creditors of the said Peter James, as towards and for all other intents and purposes whatsoever, according to the order and provisions of the said statutes, as by the said commission [436] (amongst other things) more fully appears : by virtue of which said commission, and by force of the statutes aforesaid, the said Michael Dodson, Edward Finch Hatton and Robert Comyn, three of the commissioners named in the said commission afterwards, to wit, on the eleventh day of June, in the year aforesaid, to wit, at London aforesaid, in tUe parish and ward aforesaid, having taken upon themselves the...

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